On the “Separation of Church and State”

There are a lot of firm opinions when it comes to Religion, the State, and the separation thereof.  It has been front and center in controversies long ongoing and recently fomented.  It has been referred to as a founding principle of our nation.  To the extent that most currently seem to believe both that the State may not dictate to the various religions and that the religious may not influence the State, there is little (none that I can find) from the first hundred and fifty years under the Constitution to support that position.

There is of course even less to support the notion some seem to hold that the Government may indeed dictate to the various religious groups while the members of those religious groups may not influence the State.

First, a review.

The Declaration of Independence stakes its claim of authority on Natural Law and Deism.  [emphasis added]

When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights…

Not much question there as to the source of authority from which “rights,” including the right to revolt against one’s sovereign, descends.

What does the Constitution have to say on the matter?

Here we run into a problem right off the bat.  The Preamble to the Constitution discusses the desired outcomes of the Government it establishes, it makes no mention of it’s source of authority other than it’s emphasis on “We the People.”

 

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

 

So, no explicit help there.  The Government created by the Constitution does so as a limited grant of power by The People.  Nor is there any mention of religion in the body of the Constitution (less amendments) as adopted.

An important observation at this point is that the Constitution created a Federal system.  In so doing it grants certain limited powers to the Federal Government, while reserving the remaining powers and rights to the States and the People.

Having not granted the Federal Government any power over religious practice the Federalists considered the issue settled.  The anti-Federalists were less assured (in retrospect, they were wise to be) and insisted on a set of amendments which were adopted at the same time and which became known as the Bill of Rights.

The pertinent part of the First Amendment reads:

 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;…

 

The plain text prohibits the Federal Government from making laws which would establish (make an official arm of the Government) a religion or interfere with the People freely practicing their (respective) religions.  Numerous states (including Virginia, Massachusetts, and Connecticut) had established churches predating the Constitution which continued as established churches under the Constitution (though all such were eventually disestablished by the States).

Thus there is no explicit support in the Constitution for a position that the People should be barred from imposing their religious principles upon the Government which they created and granted strictly limited powers to.

The phrase (“a wall of separation between church and state”) itself arises from an 1802 letter by then President Thomas Jefferson replying to a letter from the Danbury Baptist Association of Connecticut (one of the states which still had an established religion in 1802, which states in pertinent part):

 

Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people [The Constitution and Bill of Rights] which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

 

This too tends to support the thesis that the “wall of separation” defends the People’s “rights of conscience” versus prohibiting the exercise of that conscience in influencing government.

As for judicial precedent, the Supreme Court ruled on the issue three times in the first 150 years under the Constitution:

 

Vidal Et Al v. Girard’s Executors (43 U.S. 127 (1844))

Christianity is not to be maliciously and openly reviled and blasphemed against, to the annoyance of believers or the injury of the public.

Where can the purest principles of morality be learned so clearly or so perfectly as from the New Testament?

 

Holy Trinity v. United States (143 U.S. 457 (1892))

There is no dissonance in these declarations. There is a universal language pervading them all, having one meaning; they affirm and reaffirm that this is a religious nation.  This is a Christian nation.

 

United States v. Macintosh (283 U.S. 605 (1931))

We are a Christian people…according to one another the equal right of religious freedom, and acknowledging with the reverence the duty of obedience to God.”

 

So, where then does this hard, bi-directional “wall” come from?

 

Everson v. Board of Education (330 U.S. 1 (1947))

We could not approve the slightest breach [of that separation of church and state].

 

So, what had been a well established series of precedents over a span of 153 years, and which was fully supported by the language of the Constitution and the Declaration of Independence, were overturned by a single case.

One of the key justifications for this exception to stare decisis (a judicial obligation to observe and uphold prior judicial precedent) was the intervening adoption of the Fourteenth Amendment (in pertinent part):

 

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

Thus a legal challenge to a tax providing funding for transportation to schools (both public and private, secular and parochial) gave birth to the rigid “wall of separation between church and state” and extended the Constitutional concept of incorporation of Federal rights and privileges (following Gitlow v. New York, 268 U.S. 652 (1925)) upon the several States.

From a tiny seed has grown this wall of shrubbery, and it’s long past time it got trimmed back.

 

 

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  • DougIndeap

    Separation of church and state is a bedrock principle of our Constitution much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of “We the people” (not a deity), (2) saying nothing to connect that government to god(s) or religion, (3) saying nothing to give that government power over matters of god(s) or religion, and (4), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office.  Given the norms of the day, the founders’ avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice.  They later buttressed this separation of government and religion with the First Amendment, which constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

    That the phrase “separation of church and state” does not appear in the text of the Constitution assumes much importance, it seems, to some who may have once labored under the misimpression it was there and, upon learning they were mistaken, reckon they’ve discovered a smoking gun solving a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to name one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.

    To the extent that some nonetheless would like confirmation–in those very words–of the founders’ intent to separate government and religion, Madison and Jefferson supplied it.  Some try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that were the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Perhaps even more than Jefferson, James Madison influenced the Court’s view. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed,
    old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”

    While some also draw meaning from the references to “Nature’s God” and “Creator” in the Declaration of Independence (references that could mean any number of things, some at odds with the Christian idea of God) and try to connect that meaning to the Constitution, the effort is largely baseless.  Important as the Declaration is in our history, it did not operate to bring about independence (that required winning a war), nor did it found a government, nor did it even create any law, and it certainly did not say or do anything that somehow dictated the meaning of a Constitution adopted twelve years later.  The colonists issued the Declaration not to do any of that, but rather to politically explain and justify the move to independence that was already well underway.  Nothing in the Constitution depends on anything said in the Declaration.  Nor does anything said in the Declaration purport to limit or define the government later formed by the free people of the former colonies.  Nor could it even if it purported to do so.  Once independent, the people of the former colonies were free to choose whether to form a collective government at all and, if so, whatever form of government they deemed appropriate.  They were not somehow limited by anything said in the Declaration.  Sure, they could take its words as inspiration and guidance if, and to the extent, they chose–or they could not.  They could have formed a theocracy if they wished–or, as they ultimately chose, a government founded on the power of “We the People” (not a deity) and separated from religion.

    Contrary to your implication, the Supreme Court did not “rule” anything to the contrary in the three opinions from which you present contextless quotations.

    • http://2012.ak4mc.us/ McGehee

      Separation of church and state is a bedrock principle of our
      Constitution much like the principles of separation of powers and checks
      and balances.

      A “bedrock principle” the courts ignored completely for almost 200 years.

      • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

        Actually, a “bedrock principle” that the supreme court actively held did not exist (in terms of religious influence on government) for 153 years.

        • DougIndeap

          No, in point of fact, the Court did not actively hold for 153 years–or at any time–that separation of church and state did not exist.  Indeed, in 1879 in Reynolds v. United States, the Court quoted Jefferson to the effect that the First Amendment builds “a wall of separation between church and State” and affirmed that “[c]oming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured.”

          None of the cases you mention hold otherwise.  In Vidal, the Court considered whether a trust bequeathing a fortune to a city for the foundation of a college was hostile to the Christian religion and thus against the common law of Pennsylvania because it excluded all ministers of any sect from holding or exercising any station or duty in the college.  The Court upheld the trust as consistent with Pennsylvania common law.  The case did not even involve the U.S. Constitution.

          You also make much of Justice Brewer’s statement in Holy Trinity that “this is a Christian nation,” apparently even thinking the Court “ruled” to that effect.  The Court held that a statute restricting importation of any alien under contract to perform labor or service did not preclude a church from contracting with an alien to come to this country and serve as its pastor.  The Court based this holding on its finding that Congress intended simply to stay the influx of cheap, unskilled labor and did not intend to address circumstances such as the church’s contract with an alien pastor.  It supported this finding, in dictum (i.e., a statement not essential to its holding), with the further thought that as this is a Christian nation, Congress would not have intended to restrict the church in this situation.

          Brewer later clarified that he meant simply to observe that the nation’s people are largely Christian and not that the nation’s government or laws are somehow Christian:  “But in what sense can [the United States] be called a Christian nation? Not in the sense that Christianity is the established religion or the people are compelled in any manner to support it. On the contrary, the Constitution specifically provides that ‘congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.’ Neither is it Christian in the sense that all its citizens are either in fact or in name Christians. On the contrary, all religions have free scope within its borders. Numbers of our people profess other religions, and many reject all. [...] Nor is it Christian in the sense that a profession of Christianity is a condition of holding office or otherwise engaging in public service, or essential to recognition either politically or socially. In fact, the government as a legal organization is independent of all religions.  Nevertheless, we constantly speak of this republic as a Christian nation – in fact, as the leading Christian nation of the world.”  D. Brewer, The United States:  A Christian Nation (1905) 12.

          To much the same effect is the statement in United States v. Macintosh that “[w]e are a Christian people.”  Again you seemingly mistake that for a ruling (it is not) and omit the context.  In that case, an alien sought to become a citizen, but refused to take the oath of allegiance, except with the qualification that he would not assist in the defense of the country by force of arms unless he believed it to be morally justified.  The Court uttered the observation you quote and then pivoted:  “But, also, we are a nation with the duty to survive; a nation whose Constitution contemplates war as well as peace; whose government must go forward upon the assumption, and safely can proceed upon no other, that unqualified allegiance to the nation and submission and obedience to the laws of the land, as well those made for war as those made for peace, are not inconsistent with the will of God.”  The Court denied his application.

          None of these decisions ruled that the Constitution did not separate church and state.  In Everson, thus, the Court had no call to question or overrule any of them.

          • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

            You are arguing for the hard bi-directional wall per my article above, as opposed to the one way wall preventing the Federal Government from “establishing” an official religion or from interfering in the free practice of religion.  You have yet to provide any evidence of intent from the debates surrounding the adoption of the Constitution nor any case law suggesting the The People are barred from exercising freedom of conscience in the legislation they favor or the candidates they elect.

          • DougIndeap

            The primary purpose of the First Amendment religion clauses is not to protect churches or government, but rather to protect individuals’ religious freedom.  The free-exercise clause does this directly by constraining the government from prohibiting individuals from freely exercising their religions.  The establishment clause does this indirectly by constraining government from promoting or otherwise taking steps to establish any religion, thus assuring that individuals are free to exercise their religions without fearing the government will favor the religions of others and thus disfavor theirs.

            Some who nonetheless would like to use government to promote their religion have argued that the First Amendment works only in one direction–to protect churches from government, but not the other way around.  This, they suppose, would leave them (and churches) free to insinuate their religion into government and thereby effectively establish it as the nation’s religion.  To the extent that the First Amendment prevents that, it can be said to protect government from churches.  Indeed, the notion of a one directional wall is self-contradictory:  If any church is free to so influence and control government and thereby achieve a favored or established status, all individuals are at risk of their religions falling into disfavor with government and facing discriminatory treatment.  One of the primary aims of the First Amendment is to prevent just that.

            As I noted earlier, the constitutional separation of church and state does not prevent citizens from favoring legislation or candidates based on their religious beliefs.

          • http://www.facebook.com/people/Ryan-Murphy/100001624276605 Ryan Murphy

            So in that case you are against the contraception mandate, right?  You are either that or hypocritical.  You cannot chose both and remain remotely consistent..

          • DougIndeap

            Ryan, I intended my “au contraire” comment to be a reply to your comment, but evidently I hit some wrong buttons as it appeared instead as a new comment.

          • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

            The explicit purposes of the first clause of the First Amendment is to bar the Federal Government from “establishing” a church (or churches) [meaning to officially sponsor by the collection of taxes as tithes and exercise influence over the appointment of ecclesiastical offices] and to likewise bar the Federal Government from restricting the People in their free exercise of religion.

            You have still not demonstrated an intent to bar the People from exercising their conscience as informed by their religious beliefs (or lack thereof) in their selection of elected representatives [the bar on religious tests for office bars, once again, the Federal Government from so doing, not the People] or support for specific legislation so long as that specific legislation does not interfere with the free exercise of religion by their fellow citizens.

          • DougIndeap

            Quite right that I have demonstrated no such intent of the founders.  To the contrary, as revealed in court decisions and affirmed in my earlier comment, the separation of church and state does not prevent citizens from making decisions based on principles derived from their religions.  No argument there.

      • DougIndeap

        You suggest that the passage of more than a century from the adoption of the Constitution and First Amendment to the Everson decision in 1947somehow calls into question the legitimacy of that decision.  Such time frames, though, are hardly unusual in constitutional jurisprudence.  Indeed, it was not until 2008, 217 years after adoption of the Second Amendment, that the Court decided that it provides an individual right to possess a firearm, unconnected to service in a militia, and just two years later that it decided the 14th Amendment protects that right from infringement by states.  Are you suggesting the Court was “too late” to recognize that right?

        • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

          I established that a 1947 Supreme Court opinion overturned three previous opinions spanning 153 years of consistent precedent.

          • DougIndeap

             Hardly.  See my earlier comment below.

          • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

            Precisely so, see my article above.

    • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

      DougInDeep replies [at length]:

      Separation of church and state is a bedrock principle of our
      Constitution much like the principles of separation of powers and checks
      and balances.

      No, it’s not.  There is no textual evidence for that in the Constitution itself.  The Constitution as adopted makes no mention whatsoever as regards religion [edit, other than barring the Federal Government from applying religious tests for office].  The first such mention is in the First Amendment as demonstrated above.

      Show evidence supporting your assertion.

      Note also the Supreme Court decisions on the matter prior to 1947 which you have elided over entirely.

      • jim_m

         indeed.  The purpose was to prevent th4e establishment of an official religion. The Church of England had done a great deal of damage by restricting the establishment of churches and by refusing to ordain Bishops, who could then in turn ordain ministers.

        The point was never the modern interpretation of keeping religious influence out of the government but rather the keeping of government out of the church.  Today;s notion that one’s religious life should be put away when leaving the family home would =be entirely alien to the founders.

        • DougIndeap

          While the First Amendment undoubtedly was intended to preclude the government from establishing a national religion as you note, that was hardly the limit of its intended scope. The first Congress debated and rejected just such a narrow provision (“no religion shall be established by law, nor shall the equal rights of conscience be infringed”) and ultimately chose the more broadly phrased prohibition now found in the Amendment. During his residency, Madison vetoed two bills, neither of which would form a national religion or compel observance of any religion, on the ground that they were contrary to the establishment clause. While some in Congress expressed surprise that the Constitution prohibited Congress from incorporating a church in the town of Alexandria in the District of Columbia or granting land to a church in the Mississippi Territory, Congress upheld both vetoes. In keeping with the Amendment’s terms and legislative history and other evidence, the courts have wisely interpreted it to restrict the government from taking steps that could establish religion de facto as well as de jure. Were the Amendment interpreted merely to preclude government from enacting a statute formally establishing a state church, the intent of the Amendment could easily be circumvented by government doing all sorts of things to promote this or that religion–stopping just short of cutting a ribbon to open its new church.

          It is important to distinguish between the “public square” and “government” and between “individual” and “government” speech about religion.  The constitutional principle of separation of church and state does not purge religion from the public square–far from it. Indeed, the First Amendment’s “free exercise” clause assures that each individual is free to exercise and express his or her religious views–publicly as well as privately. The Amendment constrains only the government not to promote or otherwise take steps toward establishment of religion.  As government can only act through the individuals comprising its ranks, when those individuals are performing their official duties (e.g., public school teachers instructing students in class), they effectively are the government and thus should conduct themselves in accordance with the First Amendment’s constraints on government. When acting in their individual capacities, they are free to exercise their religions as they please. If their right to free exercise of religion extended even to their discharge of their official responsibilities, however, the First Amendment constraints on government establishment of religion would be eviscerated.  While figuring out whether someone is speaking for the government in any particular circumstance may sometimes be difficult, making the distinction is critical.

          Nor does the constitutional separation of church and state prevent citizens from making decisions based on principles derived from their religions. Moreover, the religious beliefs of government officials naturally may inform their decisions on policies.  The principle, in this context, merely constrains government officials not to make decisions with the predominant purpose or primary effect of advancing religion; in other words, the predominant purpose and primary effect must be nonreligious or secular in nature. A decision coinciding with religious views is not invalid for that reason as long as it has a secular purpose and effect.

          • jim_m

             OK.  But I fail to see how your overly long and somewhat tedious response has to do with my comment. 

          • DougIndeap

             Long and tedious it may be, but it is spot on.

          • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

            DougInDeep,

            The Constitution forbids to the people exactly one act, it is specified in detail in Article III Section 3.

            The wall of separation, per Jefferson’s 1802 letter (dealt with above), confirms his view that the wall was one way, preventing the Federal Government from interfering in matters of religion, and not vice versa.

      • DougIndeap

        You assert there is no evidence in the Constitution of separation of church and state, you say nothing of the several aspects of the Constitution I have already pointed out.

        You also ask for evidence.  Before asking for more evidence, why not deal with what I’ve already presented–at length–in my previous comments?

        • Commander_Chico

          Welcome, Dougindeap.  You will now find out how reasoned, factual arguments are dealt with here.

          • jim_m

             Despite Chico’s snark, good arguments are welcomed.  However, lengthy discourses tend either to not be read or to have one small point taken out of them. 

            I encourage you to be specific, to the point and most importantly, brief.  This is Wizbang, not Volokh.com .

          • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

            Would you care to revise your allegation above or perhaps even admit error and apologize?

        • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

          I point out that the Constitution tells the Federal Government what it may do, and that those powers not explicitly granted are forbidden it.  The Constitution bars the People from only one act.

          • DougIndeap

             As noted below, it is important to distinguish between actions and speech of the government and of individuals.  When “the People” act in one or the other capacity, different rules apply–e.g., the establishment clause constrains government, not individuals, and the free exercise clause protects the freedom of individuals, not government.

  • Sky__Captain

    If there is a “separation of church and stater”, then whyinthehell is 0bama attempting to tell religious organizations what they have to cover in their health insurance plans?

    I would think the government would be barred from doing this under DougIndeap’s assertions.

    • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

      He’s also on the wrong side (at the Federal level) of the RFRA (Religous Freedom Restoration Act of 1993 [ 42 U.S.C. § 2000bb through 42 U.S.C. § 2000bb-4]) with regard to 0bamacare, as well as being on the wrong side of the First Amendment.

  • LiberalNightmare

    Obama is a jealous god. 

  • ackwired

    I don’t know that this shrubbery needs any trimming.  While assertions have been made that individuals or organized religions should not be allowed to influence government, I am unaware of any actions taken to prevent such activity.  If there were such actions, perhaps we should consider some “trimming”.  The challenge for government is to keep one religion from stomping all over the rights of another.  This happened frequently in colonial America.  Quakers were hung in Massachussets and Catholics were persecuted virtually everywhere but Maryland and Pennsylvania.  Many people think this experience had a great deal to do with Madison and Jefferson opposing the recognition of a religion by the state.

    • jim_m

       There has been plenty of selective application of the tax law, prosecuting conservative churches that express a political opinion by attempting to remove their tax exempt status and turning a blind eye to left wing churches that routinely have politicians deliver messages from the pulpit.

      • ackwired

        I haven’t heard about any churches losing their tax exempt status.  Do you have any specifics?

    • http://www.facebook.com/people/Ryan-Murphy/100001624276605 Ryan Murphy

      Really? You want to claim there is no differential treatment?

      • ackwired

        Of whom and by whom?  Do you have any specifics?

  • Guest

    From a tiny seed has grown this wall of shrubbery, and it’s long past time it got trimmed back.

    Wrong.  

    We need … another shrubbery!

    • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

      Spoken like a true liberal!  Well snarked!

      • Guest

        Also, you must cut down the mightiest tree in the forest …. WITH A HERRING!

        • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

          A little Monty Python and the Holy Grail snark goes a long way in a serious discussion of a serious matter.

          • Guest

            Which is why I have confined it here.

    • herddog505

      Don’t make us say, “Nee!”

  • Commander_Chico

    Thus there is no explicit support in the Constitution for a position that the People should be barred from imposing their religious principles upon the Government  .  

    . . . . . which could then impose its religious principles upon (lesser) Peoples.  

    If that’s not an argument for blasphemy laws and Christian Sharia, I don’t know what is.

    Of course, there is an argument that the Roman Empire began its decline when it abandoned Jove, Apollo, Mars, Venus and that crew, so maybe “religious principles” in government are a good thing.  One type of nonsense serves as well as another to keep the people under control.

    • jim_m

      So the Empire reached its greatest extent in 117 AD and you’re blaming the decline on the abandonment of their pagan deities after the Edict of Milan in 313 AD? And most people date the real decline as starting after the division into eastern and western empires at the end of the 4th century.

      Either way it is either ages before or ages after the changes in religion. Laying the blame for the decline in the Roman empire on the advent of Christianity is either borne of ignorance or prejudice.

      Yeah.  That sounds about your speed.

      • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

        Better to ignore chica’s discourses into the irrelevant.

    • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

      Already covered since the Constitution already prohibits the Federal Government from religious tests for office (while not so restricting The People) and from establishing a church or interfering with the free practice of religion.

      • Commander_Chico

        so what exactly do you mean by “imposing religious principles upon the government?”  If the principle’s not explicitly “religious,” but universally “moral,” then religion need not and does not come into play.

        Example: ban on stealing = universal
        ban on pork = religious

        • herddog505

          What is the difference between “religious” and “moral”?  Where does “morality” come from?

          • Guest

            A lot of theories.  My own argument is that our morality amounts to survival strategies.  That is, that we have instincts to behave certain ways because those instincts promote survival.  The ones without those instincts … 

          • herddog505

            Collective or personal survival?

            Obviously, I would object to somebody trying to murder me, but why should I object if he tries to murder somebody else, somebody I don’t know or may even dislike myself?

          • Guest

            Collective or personal survival?

            Yes.  There’s some fascinating stuff out there in the field of evolutionary psychology:

            http://en.wikipedia.org/wiki/Evolutionary_psychology 

          • herddog505

            Yes.  It’s an interesting question of WHY we cooperate even when it is not to our personal interest, or when we sacrifice ourselves for somebody else.  Certain animals do this for their young; is this sort of behavior in humans hardwired and extended to the entire human “family”?  Or did humans learn early on that, if I help him, he’ll help me and, by extension, if I DON’T help him, he won’t be around to help me?

          • Guest

            Some combination of those, I suspect.  There’s been some research that finds certain parts of the brain are hardwired for certain bits and pieces of what we call moral behavior.  And then there are strategies that are tried and true, that humans then pass to their offspring.  

            The beauty of this research is that its amenable both to religious and secular explanations of morality.  If you are religious, then God (or gods) hardwired these behaviors into your brain.  (CS Lewis referred to this as the voice of God in your heart). 

            If you are secular, then there is a physiological explanation for why people behave the way they do.  

          • Commander_Chico

            It’s the difference between banning stealing and banning pork. (although there were good reasons to ban pork in the ancient Near East).

            That is, universally applied standards and sectarian standards.

            Morality is about what you do to other people, religion is often about what you’re allowed to do yourself.

            It’s also the difference between reason and “God says” applied to some text.

          • herddog505

            But isn’t the difference between universally applied standards and sectarian standards in the eye of the beholder?

            Commander_ChicoMorality is about what you do to other people, religion is often about what you’re allowed to do yourself.

            To a certain extent, but there is an undeniable component in most religious (certainly in the Big Three) about relations with other people.  I suggest that much of contemporary American / Western morality is based on Judeo-Christian religious values; how different would our socities be if (for example) it was based on thuggee?

          • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

            Which segues into the question of whether the Government is to be influenced by society or society influenced by Government.

          • herddog505

            Both, I’d say.  If society becomes more liberal (as it did starting in the early ’60s if not earlier), then it follows that the people in that society will elect increasingly liberal representatives, who in turn will pass liberal laws that influence what people consider to be “normal”.

            For example, can you imagine Americans in the 1830s wanting Social Security or unemployment laws, or Americans in 1912 thinking that such things were part of the right, proper, and normal function of the federal government?

          • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

            I would argue that it is not the Government’s place to establish policies intended to reshape the society.

          • herddog505

            Depends on your perspective.  Consider the ongoing, low-grade kerfluffle over the Pledge of Allegiance.  Why should / should we not have the pledge?  I suggest:

            PRO – we wish to encourage a sense of patriotism among American school children.

            CON – we do not wish to inculcate American kids with a sense of “my country right or wrong” hyperpatriotism.

            In both cases, government policy is intended to shape the society.

          • Guest

            I have no opinion on the pledge of allegiance as a whole, but I see no reason to require that any person recite it at any time.

          • herddog505

            I have mixed views.  On the one hand, any American should have no problem with reciting it at any time (and should strongly consider leaving the country if he does).  On the other, children, especially very young ones, likely don’t fully understand what it means and so making them recite it is pointless.  Finally, a pledge of allegiance, even to something as noble as our country, is a little close to indoctrination for my tastes.

          • rx7ward

            Does God do what’s right because it’s right, or is it right because God does it?

          • rx7ward

            Does God do what’s right because it’s right, or is it right because God does it?

          • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

            Do you presume to judge God?

          • rx7ward

            Huh? It’s a simple conceptual question. Is “the right thing” right because God says so, or is it right, and therefore God says it’s right? Not sure where you get judging God in there!

            And the answer to your question is, “No.” I do not presume (that’s a loaded word, huh?) to judge God because I don’t believe that God exists. (It’s kind of hard to pass judgement on a fictional character.)

            Do you believe that God is the only way to be moral? That without religion there can be no morality?

          • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

            You do presume to judge God.

            For your next act will you be proclaiming your humility?

          • rx7ward

            And now you are presuming to judge me, a person you’ve never met in your life. Why can’t you answer my questions? Instead of trying to answer, you swerve away into off-topic insinuations. Just answer the damn question, Rodney! Why is that so hard for you? Maybe you’ve seen that going down that path will lead you to admit that you’re completely wrong here … hmm?

          • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

            Does that shoe pinch now that it’s on your foot?

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  • Guest

    Alright, fine, it should be trimmed back. You offer a short hostorical overview, but from this blog post I can divine nothing of what you want. Do you want FFRF to stop yelling “sue” every time somebody says “god?” Do you want city councils to have more leeway on legislative prayer? Do you want the Supreme Court to overturn Engel v. Vitale?

  • DougIndeap

    Au contraire.  The freedom to exercise one’s religion, like all freedoms, is hardly absolute.  

    Confronted by questions about the government requiring or prohibiting
    something that conflicts with someone’s faith, the courts have generally ruled
    that under the Constitution the government cannot enact laws specifically aimed
    at a particular religion (which would be regarded a constraint on religious
    liberty contrary to the First Amendment), but can enact laws generally
    applicable to everyone or at least broad classes of people (e.g., laws
    concerning pollution, contracts, torts, crimes, discrimination, employment,
    etc.) and can require everyone, including those who may object on religious
    grounds, to abide by them. (E.g., http://supreme.justia.com/case

    When the legislature anticipates that application of such laws may put some
    individuals in moral binds, the legislature may, as a matter of grace (not
    constitutional compulsion), provide exemptions for conscientious objectors.

    The real question with respect to the health care law is not so much
    whether the First Amendment precludes the government from enacting and
    enforcing the generally applicable laws regarding availability of health
    insurance (it does not), but rather whether there is any need to exempt some
    employers in order to avoid forcing them to act contrary to their consciences.

    • herddog505

      DougIndeapThe real question with respect to the health care law is not so much whether the First Amendment precludes the government from enacting andenforcing the generally applicable laws regarding availability of health insurance (it does not), but rather whether there is any need to exempt some employers in order to avoid forcing them to act contrary to their consciences.

      A very reasonable statement of the problem.

      I argue, however, that the Constitution DOES preclude the federal government enacting laws regarding health care as this is not an enumerated power.

      • Guest

        I argue, however, that the Constitution DOES preclude the federal government enacting laws regarding health care as this is not an enumerated power.

        Without rehashing the individual mandate, etc., I’d argue that the federal gov’t can enact such laws.  Safety standards for medical devices that move in interstate commerce, for example.  

        • herddog505

          Then what’s the point of having a constitution, or indeed of any written law at all?

          Your argument (which, I’m sad to say, has been accepted by the SCOTUS) is that, in effect, the Constitution had been violated before, so let’s keep on doing it, the interstate commerce clause being a handy vehicle for such violations.

          I add that the commerce clause has been abused far beyond its original meaning and intent.  Its statement, as with most things in the Constitution, is brief:

          To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

          On the face of it, the regulation of commerce amonst the several states is exactly what is discussed in The Federalist Papers #42:

          A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity.

          Clearly, Mr. Madison is NOT discussing the power of the contemplated federal government to regulate what MAY be bought and sold, but rather the the power of the central government to ensure a level commercial playing field between the states.

          Unfortunately, the federal government has, over the years, decided to stretch the meaning of the commerce clause to the point where it can stick its long, bumbling, interfering nose into just about everything.  “Hey!  That’s made in North Carolina but sold in California!  We can regulate it!  WOO-HOO!” One of the more outrageous and noxious examples of this is the Gun-Free School Zones Act of 1990 by which the government attempted to assert that the commerce clause gave it the authority to regulate guns on school property, though the Court rightly (and barely) decided that this was NOT a reasonable interpretation of the commerce clause. (see United States v. Lopez 514 U.S. 549 (1995) *.

          I add that anybody who values liberty and despises even the threat of tyranny must be nauseated (if not outright terrified) by Mr. Justice Breyer’s dissenting opinion: in effect, he argues if even the most tenuous connection may be made with commerce, then the Congress has a right to regulate it.  This is basically the argument behind ObamaCare: people MUST at some point buy health care, and therefore the Congress has the power to regulate it.  By the same token, people MUST as some point in their lives eat vegetables; does the Congress therefore have the power to say that they MUST do so, and even determine how much and which ones?

          ===

          (*) https://supreme.justia.com/cases/federal/us/514/549/case.html

          • Guest

            Herd:

            If you want to play in the pools of Lopez, I should point out that, say, regulating the safety of medical devices that move in interstate commerce falls squarely within Justice Rehnquist’s majority opinion in Lopez.  

            Moreover, it seems to me that if you’re talking about a medical device designed in California, incorporating raw materials from China, machined parts from Oregon, assembled in a factory in Alabama, then causing harm to persons in New York, Pennsylvania, and Rhode Island … federal law is indeed appropriate.  

          • herddog505

            Why?  Have not the various states the power to say, “this is dangerous, so we proscribe its sale”? Or, perhaps more clearly, SHOULDN’T they have that right?  If they haven’t, then doesn’t that make a hash of such things as tobacco taxes?

            Whether or not Mr. Chief Justice Rehnquist thought so merely emphasizes my point that they Court has basically taken the attitude that, because we’ve violated the Constitution before, we are at liberty to not only continue to do so but to find new ways to do so.  I understand the practical nature of this view: it’s difficult and perhaps even harmful to, with the stroke of a judicial pen, dismantle various federal programs and agencies that have been operating (with some good effect, I admit) for years.

            But, again, what is the point of having a written Constitution when the real name of the game is deciding “Do people really, really want this?” and “Do I think that it does some good?”

          • Guest

            A little thing called concurrent jurisdiction.

          • herddog505

            In this case, I don’t see how that has much connection.  IMO (and I realize that I’m much in the minority here), the first thing a federal judge ought to do when confronted with a case is ask, “Does it have to do with federal law?” His next question should be, “Is it in the federal Constitution?”

            In the case of the commerce clause, there is – or should be – damned little for a federal court to say.

    • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

      See the RFRA (cited above), which (at the Federal Level) re-imposes the strict scrutiny standard (from Sherbert v. Verner, and Wisconsin v. Yoder).

      • DougIndeap

        While the health care law will need to meet the standards of RFRA, as you note, that has nothing to do with the constitutional issues we’ve discussed.

        Also, earlier court decisions applying similar standards suggest that meeting the standards prescribed in RFRA may not be as difficult as you suppose. 

        • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

          Um, yes it does.  RFRA was a response by Congress to an earlier Supreme Court overreach with regard to the rigid bi-directional wall of separation invented in 1947.

          • DougIndeap

            Yes, of course, it was a response to the Court’s ruling regarding the scope of the First Amendment.  RFRA, as a statute, though, does not change the Constitution or the Court’s interpretation of the Constitution–hence, my point that it has nothing to do with the constitutional issues we’ve discussed.  The Court’s interpretation of the First Amendment remains unchanged by RFRA.

          • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

            Actually, Article III Section 2 speaks to this [emphasis added]:

            In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

            Which would appear to make the RFRA requirement for use of the strict scrutiny standard binding upon the Federal Courts.

          • DougIndeap

            Rodney,

            Clever as you are, you’re plainly playing lawyer without an education (in law, that is).  Article III, section 2, simply provides that with respect to certain cases Congress has the power to prescribe the appellate jurisdiction of the Supreme Court.  It has no bearing on the issue we are discussing.

            RFRA, as a statute, establishes statutory law and standards.  It does not and cannot trump the Constitution, which the Court has interpreted as I described above.

            Your underlying point remains though.  The health care law will be reviewed by the Court for compliance with both the Constitution and RFRA using the respective standards pertinent to each.  It is conceivable, thus, that the law could be found to comply with the Constitution, but not with RFRA.

          • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

            Article III Section 2 provides that Congress has the power to make exceptions to appellate review and to set regulations for appellate review, which the RFRA does by regulating the standard of review.

          • DougIndeap

             Do you ever listen to anyone?  Trust me, as a lawyer with much education and considerable experience in constitutional law and federal court jurisdictional issues, I am informing you that you are barking up the wrong tree.  The section has nothing to do with what you are saying.

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